4 F. 346 -

4 F1d 346

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Case Text

846

FEDERAL REPORTER.

4. That the only remedy of the respondent for a breach of such contract, if he has any, is an action for damages. There' must, therefore, be a decree fot the libellants according to the. prayer of their libel, which will be prepared.

VON LINGEN and others v. DAVIDSON and others. (Libel.) DAVIDSON and others v. VON LINGEN and others. (Cross-Libel.)
(Uz"rcuit Court, D. Ma1"lJZarul. November B, 1880.)
1. CHARTER-PARTy_uABoUT TO BAIL."-The words" about to sail from Benizaf with cargo for Philadelphia," contained in a charter-party, heZd to mean, under the circumstances of this case, about ready to sail with cargo. 2. BAME-BAME.-Hdd, further, therefore, that a vessel not more than three-elevenths loaded, and the time of finishing subject to all the contingencies of wind, weather, labor, and boatlil incident to an open roadstead on the northern coast of Africa, was not" about to sail ,.. within. the meaning of the charter-party. Von Lingen v. Davidson, 1 FED. REp. 178, reversed.

FA.OTS FOUND

BY THll;

COURT.

(1.) The British steamer Whickham; owned by T. H. Davidson and others, the defendants in the original libel, sailed from Shields on the ninth of July, 1879, bound for Lisbon, where she arrived on the 16th, and, having discharged her cargo, sailed again in ballast on the 23d for Benizaf, on the coast of Morocco, to take a load of iron ore under a charter· for Philadelphia. She passed Gibraltar on the 25th, and arrived at Benizaf at 4: 30 P. M. of Saturday, the 26th. She began taking in cargo under the charter for Philadelphia during the forenoon of Monday, the 28th. On that day she took on board 115 tons, and on the 29th about 90 tons, but on the 30th none, and on the 31st only four boat loads. Dur-

84:7
ing this time there was delay in delivering the cargo .on board, as other vessels in port were entitled to precedence in loading. After the 81stthe-cargo was put ;on board withas much dispatch as oould have been expected at and it was all in on the seventh of August, at 5 : 80 P. M. An hour later the vessel sailed, and, stopping five hours at Gibralter for . 000.1 on the 9th, arrived at Philadelphia on the seoond of September. She completed her unloading,at that port on the 7th. (2.) The usual cargo at Benizaf is iron ore. In loading, a vessel lies out in the stream about a quarter of a mile from the shore, and the ore is taken to her in small boats of from five to seven tons burden each. It is then passed up the ship's side in baskets. Two or three stages are put up tween the boats and the ship's decks, and two men ,on each stage receive and pass the baskets. Thia is the only way of loading such cargo at that port. (3.) About the first of August,Gregg& Co., a firm of brokers in Philadelphia, were authorized by oable message from the owners in England to get a charter for the Whick. ham to carry grain from the United States on her return voyage. Not being able to do this in Philadelphia, the firm, on the first of August, telegraphed Mr. Erickson, a ship broker in Baltimore, to look for a charter in that city. their telegram it was said that the vessel "had sailed, or. was about to sail, from Benizaf with cargo for Philadelphia." The precise form of the authority given by the owners to Gregg & Co. is nowhere shown from the evidence, further than may be inferred from the telegram to fuickson·. (4.) A short time before first of August, Schumacker & Co., of Baltimore, the original libellants, employed Mr. Ford, another ship-broker in that 'city, to procure them a v,esselto take a cargo of grain to Europe which they were under con. for that tract to ship in August. Hefhldingthat month were Bcarce, and hearing of. 'the W;J;rickham, took Mr. Erickson to the office of Schuwa,cker 4r,00., and suggested that she might do. At ,the interview'}Vhich then took place it was understood by all parties tbata ,was wanted tb,at 'be loaded in August, a,n4;tht' no pther would, answer
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848

'. 'I'EDEBAL BIlPOBTBB.

the pnfpose. Bchnmacker& '00., doubting whether the Whic1tham could arrive in time, wanted a guaranty that she would,but this was declined. All parties then made their calcwations as to the probable time of her arrival upon the basis of'ihe language in the telegram, and finally Schumacker & Co. agreed to take her; first, however, providing that she might be loaded in Philadelphia' or Baltimore at their option, intbIiding if she did not arrive in time for Baltimore to get her cargo under their contract at Philadelphia. In these calculations it was assumed by all that she would get away from Benizaf not later than the second of August, and that her voyage across would probably be about 20 days. This all occurred at Baltimore on the first or August, and it does appear from the evidence that any of the parties, either in Philadelphia or Baltimore, knew anything of the movements of the vessel except as they were to be inferred from the telThere was no communication 'With Benizaf by telegraph, the nearest telegraphic station being at Gibraltar, which was a day's sail away. (5.) As soon as the bargain was concluded, Erickson sent to Gregg & Co. for So charter-party in form. They imme- , diately sent the draft of one in which the vessel was described as "sailed from or loading at Benizaf." This Schumacker & Co. declined to accept on the ground that their agreement was for a vessel that "had sailed or was about to sail from Benizaf with cargo for Philadelphia." This being communicated to Gregg & Co. they at once sent forward a new draft to meet the wishes of Schumacker & Co., and using the language they insisted This new draft reached Baltimore on the eecond of August, and was duly executed by all a copy of which is marked parties. This is the Exhibit A, and filed with the original libel. From this it appears that in the printed blank which was used there were the following words: "Charterers to have option of cancelling this charter-party should vessel not have arrived at loading port prior to --." These words were erased by drawing a pen through them before signing. (6.) Schumacker & Co. having ascertained, on the ninth of

VON 'LINGEN V. DAVIDSON.

'August, that the steamer passed Gibraltaroulwards from Benizaf on that day, and being theliisatisfied that she would not arrive in time to load either at Baltimore or Philadelphia. in August, at once set about securing another vessel, and on the 16th got one, which they afterwards loaded at an increased cost of freight to them over what they would have been compelled to pay the Whickham of $1,988.25. It is agreed that this new charter wafJ effected on as favor8Jble terms as it could have been in the month of AugUst, and that if Sohumacker & Co. are entitled to reoover at all it must be for the increase in the cost of freight which they paid. (7.) The discharge of the cargo of iron ore from the Whickham was completed with dispatch at Philadelphia, and on the seventh of September she sailed for Ba.ltiniore, where she arrived on the 9th, and was tendered, Schumaker & Co., under the charter, on Ithe 11th. ;They declined· to accept her for the reason that, as they claimed, when the charter-party was entered into she had neither sailed nor was about to sail from Benizaf, within the meaning of that provision in the charter, as understood by the parties. Another charter was then obtained, but at a loss to, her of $4,098.18, as of May 10, 1880. It is agreed that the charter was as favorable as any that could have been effeoted, 'and that if her owners are entitled to recover at all, it must be for the above amount as their loss. Blackiston <t Thomas, for appellants. A. Sterling, Esq., for appellees. WAITE, C. J. The only question in this ease is whether, on the :first of August, 1879, the Whiokham was "about to sail from Benizaf with cargo for Philadelphia," within the meaning of that term as used in the charter sued on. The owners in England, having aooepted the contraot made for them by their agents in Philadelphia and Baltimore, are bound by its terms just as their agents would be were they principals. The language used must therefore be interpreted, if possible,' as the' parties in Baltimore understood it when they were, contracting.

3lS0

i'EDEBAL BEPOBTEB..

It is conceded .that if the Whickham was "about to sail," .giving that. phrase the effect it was intended to have, Schumacker & Co. took the risk of her arrival in time to answer the purposes; but. if she was not, that the warranty to that effect was broken, and her owners must make good the loss caused by the breach. "About" is a relative term. It may indicate one thing when applied to one state of facts, and another under different circumstances. "Contracts, when their meaning is not clear, are to be construed in the light of the circumstances surrounding the parties when they were made, and the practical interpretations which they, by their conduct, have given the provisions in controversy." Lowber v. Bangs, 2 Wall. 737. The prominent fact in this case is that a vessel was wanted to load at Baltimore in August. This was brought directly to the attention of all the contracting parties, and it was well understood that Schumacker & Co. would not take the Whickham unless there was a reasonable probability of her arrival in time. That the charter would not have been made if it had been known that she could not get away from Benizaf until the evening of the 7th is apparent from the fact that, as soon as it was ascertained she did not pass out from Gibraltar until the 9th, steps were taken to get another vessel in her place. In addition to this, the testimony shows that when the parties were making their calculations as to the time she would probably reach Baltimore, it was assumed that she either had sailed, or, at the latest, would sail on the next day, which' was the second of August. It was not supposed that her time to Philadelphia would be less than 20 days, and this, with a reasonable allowance for unloading, could not put her in Baltimore earlier than the 28th or 29th, if she sailed as late as the 2d.. Her actual time to Philadelphia exceeded the estimate, but this, if her sailing had been prompt, would have.been at the· risk of the charterers. Parol evidence is not admissible to vary the terms of a. written inlltrnment, but, where ambiguity exists, it maybe given in aid of interpretation to show the facts and

VON L1:tlGEN t1. DAVIDSOlf.

851

staticel'l the midst of which the parties weres,tJting. These assumptions and calculations are'faets in the light of which this indefinIte word is to be read. Sittce "abont" may mean a longer or shorter period, according to these circn:ll1stattces tend to show what limitation the parties put upon it in this transaction. ' Another important fact is found in the practical interpretM tion which the parties by their :conduct,. put on the' language they have used. Gregg&Co., in Philadelphia., to 'have assUIhed that the would be about to sail froni Benizaf with cargo, within the meaning of 'their telegraphiC' authority to Erickson, if sM were there loading, and they' :in their first draft of the charter-party, described as "saill:Jd or loading at Benizaf." This, however, did'not meet-t'heviews of Schumacker & Co., and they declined to enter into the contract on those terms, claiming' tnaftheyhad agreed for a vessel that was "about to sail." In this way they, in effect, said that, according to their understanding of the language upon which they had been act· ing, a vessel might not be ','about to sail" if she was only load. ing at such a port as Benizaf, and with such a cargo as she was getting there. To this suggestion Gregg & Co. apparently assented without objection, for they immediately sent forward the new charter-party, with their signature affixed, in which the vessel was describediil accordance with the Ian. guage' they had used in,their telegram to Erickson. Such conduct shows clearly that the word "about" was t1sedad. visedly, as indicating BOme shorter period of time than loading would necessarily imply. Under these circumstances it seems to me clear that the parties must have understood their language to mean that the Whickham had either sailed or was abont ready to sail with cargo. It is difficult to reconcile any other interpretation with the undisputed facts in reference to which the parties were acting. Taking this as the effect of the contract, I have had no difficulty in reaching the conclusion that the vessel was not in the condition she was represented to be. Her carrying capacity was something over 1,100 tons. Hel

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8£>9

FEDERAL REPORTER.

cargo was iron ore, which could only be put on' board in a particular way, and by hand, without the use of machinery. Less than,800 tons were then in, and although the utmost diligence was employed the remainder was not got on board until late in the sixth day afterwards. In short, s4e was not more than three-elevenths loaded, and the time of finishing was subject to all the contingencies of wind, weather, labor, and boats incident to an open roadstead on the northern coast of Africa. Certainly in this condition she could n,ot be considered as ready to sail. At most she was only loading, with the time of her sailing to a great extent uncertain. It is true that the term "about" implies in such a connection the lapse of some time, but not enough, as it seems to me, in this case, to enable the vessel to do what was required of her to put herself in a condition to sail with ca.rgo under her charter from Benizaf to Philadelphia. It follows that the original libellants are entitled to recover, and that the cross-libel must be dismissed. A decree may be prepared accordingly.
CONOLUSIONS Oll' LAW.

That the Whickham was not about to sail from Benizaf on the first of August, within the meaning of that term as used in the charter-party. 2. That Schumacker & Co. are entitled to recover trom the defendants to their libel the sum of $1,988.25, and the interest thereon from September 11, 1879. 8. That the cross-libel of T. H. Davidson and others mus' be dismissed.

SMITH V.II'UY.

853

SMITH 17.

MoKAY and others.

(Circuit Oourt, E. D. ¥ichigan. November 9, 1880.) 3,1875, f 2, FIRST CLAuBE.-The first clause of the second section of the removal act of March 3, 1875, relates only to cases in which there is a single, indivisible controversy, and in which all the individulUs upon the moving side are necessary parties to such controversy. In such case all of the individuals upon such side must unite in the petition for removal. Jl SAME-SAME-SAME-AcT OF MARCH 3,1875, § 2, SECOND CLAuBE.-The second claUSe contemplates cases in which there are persons presence is not necessary to the determination of the main controversy; in which case either one or more of their co-parties may petition for removal, though all be citizens of the same state. S. SA:ME-SAME-SAME.-Hence, where A., a citizen of New York, sued B., C., D., E., and F., citizens of Michigan, and B. filed a petition for removal, alleging that the controversy was wholly between the plaintiff and B., 0., D., and E., and that F. was not a necessary party to the trial of such controversy, held, that the case was properly removed.

I.

RE:MOVAL-PETITloN-PARTms-ACT Oll' MARCH

Motion to Remand. This was an action of replevin originally commenced in the state court by John L. Smith; a citizen of the state of New York, against John McKay, Eugene Robinson, Jesse H. ]j'arrell, Henry Rose, (impleaded as John Doe,) and J. P. Johnson, all citizens of the state of Michigan. The petition for removal was made by defendant McKay alone, and set forth, haddition to the other material allegations, that he was "a citizen of the state of Michigan; that Eugene Robinson, lesse H. Farrell, Henry Rose, (impleaded as John Doe,) were and are also citizens of the state of Michigan, and that the eontroversyin said suit is and the issues are wholly between the plaintiff, the petitioner, and the other defendants above named; that the said defendant J. P. Johnson is noi a necessary party to or in the trial of said controversy or issues, or any of them, and said Johnson also was and is a citizen of the state of Michigan." Motion was made to remand upon the ground that only one of the defendants petitioned for the removal. Beakes It Outcheon, for motion. Moore It Oanfield, for petitioning defendant. v.4,no.5-23